Investigative Report At Center of Alleged SLAPP

An interesting case is playing out in DC Superior Court. The plaintiffs allege, in a 103-page, 535-paragraph complaint, that they were defamed and cast in a false light in a 541-page report that was commissioned by the American Psychological Association, and prepared by the international law firm Sidley & Austin and its partner, David Hoffman, all of whom are defendants in the case.

The APA retained Sidley to investigate allegations that the APA had colluded with U.S. military officials to enable the torture of detainees in off-shore locations following the events of September 11, 2001. This issue “came to a head in 2014, when New York Times investigative reporter James Risen published a book titled Pay Any Price, which discussed the role of psychologists in national security interrogations and claimed that APA colluded with the United States Government to support enhanced interrogation techniques that amounted to torture.”

The complaint alleges that the report “makes three primary allegations, each of which is false. It asserts that Plaintiffs and others colluded over a series of years by:”

“ensuring that the guidelines issued for psychologists involved in the interrogation process were no more restrictive than ‘existing’ military guidelines which, Hoffman falsely asserts, were too loose to constrain abuses that amounted to torture”;

“preventing the APA from banning psychologists’ participation in national-security interrogations”; and

The defendants filed anti-SLAPP special motions to dismiss, arguing that each of the named plaintiffs was a public official or limited purpose public figure, and that the complaint did not allege facts showing that the challenged statements were made with actual malice.

The APA anti-SLAPP special motion to dismiss first argued that the suit arose from an act in furtherance of the right of advocacy on issues of public interest because the report was made in a place open to the public or a public forum (APA’s website), and because it was on an issue of public interest (the health and safety of detainees with whom psychologists and military interrogators interacted).

Likewise, the Sidley anti-SLAPP special motion to dismiss argued that, because its report related to the “‘health or safety’ of detainees, the well-being of the community of APA’s more than 100,000 members, who have dealt with years of allegations about APA’s role in connection with abusive interrogations,” and because the report was published on the APA website, it qualified as protected speech under the DC anti-SLAPP statute.

The Sidley anti-SLAPP brief then argued that, because plaintiffs Dunivin, Banks and James were Army lieutenant colonels who served in “senior positions, including at Abu Ghraib and Guantanamo Bay and in the Army’s Special Operations command,” they were public officials who needed to plead facts showing “actual malice,” which they had not. Sidley argued that remaining plaintiffs (Behnke and Newman) were limited-purpose public figures who had not pleaded any facts showing actual malice:

[t]he Complaint contains no allegations that come close to establishing that Sidley actually knew that the allegedly defamatory statements were false, that it actually had a high degree of certainty that they were false, or that it actually entertained serious doubts as to the truth of those statements.” (emphasis in original).

Sidley further argued that allegations in the Complaint about its allegedly deficient conduct – including that Sidley/Hoffman had materials which demonstrated that statements in the report were incorrect; the way Sidley conducted the investigation, including expanding the scope of the investigation without telling plaintiffs and placing too much reliance on persons plaintiffs believed had a negative view of them; the manner in which the report was written or Sidley’s actions after the report – did not demonstrate actual malice.

The APA similarly argued that there were no allegations in the expansive complaint that show it acted with actual malice. The APA argued that it had no reason to second-guess the report before publishing it, and that it was entitled to rely upon Sidley’s extensive investigation, findings, and conclusions.

In the almost seven years since the DC anti-SLAPP statute first became effective, several parties have successfully prevailed on anti-SLAPP motions by arguing the plaintiff was a public figure or limited-purpose public figure, and that the complaint did not allege facts showing actual malice. For example, the DC Superior Court in Center for Advanced Defense Studies v. Kaalbye Shipping International granted an anti-SLAPP special motion to dismiss because it concluded that Kaalbye was limited-purpose public figure and had not shown that the challenged statements were made with actual malice.

And in Burke v. Doe, the DC Court of Appeals held that, because the plaintiff was a limited-purpose public figure, who had not shown that the challenged statements were made with actual malice, the Superior Court should have granted the anti-SLAPP special motion to quash.

Finally, just a few months ago, the DC federal district court dismissed Deripaska’s libel suit against the Associated Press because it found that he was a limited-purpose public figure who had not shown that the challenged statements were made with actual malice. The dismissal was under Rule 12(b)(6), because the court found that the DC anti-SLAPP statute was inapplicable in a DC federal court diversity case; presumably the same result would have occurred if court concluded it could apply anti-SLAPP statute in a federal court diversity case.

The suit against the APA and others had the potential to add to this growing body of law. But the Superior Court has stayed the case until a virtually identical case pending in the Ohio appellate courts is first resolved. (It appears that the plaintiffs first sued these defendants there. The Ohio trial court granted Sidley’s motion to dismiss on the basis that the court lacked personal jurisdiction over the law firm. That decision is now on appeal).

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About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado →

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